State v. Stubbs

• Decision Date: 06 November 1965
• Docket Number: No. 41643,41643
• Citation: 407 P.2d 215,195 Kan. 396
• Parties: STATE of Kansas, Appellee, v. James Jacob STUBBS, Appellant.
• Court: Kansas Supreme Court

Page 215

407 P.2d 215

195 Kan. 396

STATE of Kansas, Appellee, v. James Jacob STUBBS, Appellant.

No. 41643.

Supreme Court of Kansas.

Nov. 6, 1965.

Rehearing Denied Dec. 10, 1965.

Syllabus by the Court

Where defendant was convicted of the crime of murder in the second degree (G.S.1949, 21-402) and sentenced to a term of sixty years in the state penitentiary under the habitual criminal statute (G.S.1949, 21-107a), the record is examined, and it is held:

1. The trial court did not err in admitting the defendant's written statement into evidence for the reasons:

(a) That an accused's statement made during a pretrial interrogation by law enforcement officers is not rendered involuntary and inadmissible because of the absence of counsel at the time it is made, under the facts as more fully set forth in the opinion;

(b) The McNabb rule as applied in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, is applicable only to federal prosecutions and not state criminal proceedings;

(c) There was substantial evidence to support the finding that the statement was freely and voluntarily made.

2. Defendant was not denied due process of law because of lack of notice or opportunity to be heard when sentenced under G.S.1949, 21-107a, (Following Sanders v. Hand, 190 Kan. 457, 375 P.2d 785.)

3. That alleged trial errors discussed in the original opinion of State v. Stubbs, 186 Kan. 266, 349 P.2d 936, cert, den. 363 U.S. 852, 80 S.Ct. 1632, 4 L.Ed.2d 1734, are without merit.

Donald H. Humphreys, Great Bend, argued the cause, and was on the briefs for appellant.

Robert L. Bates, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Brock R. McPherson, County Atty., were with him on the brief for appellee.

O'CONNOR, Justice.

This is a direct criminal appeal which reaches this court in the following manner: In December 1958 the defendant was convicted by a jury of murder in the second degree (G.S.1949, 21-402). Defendant filed a motion for new trial, which was denied. Having been twice convicted of felonies on previous occasions, he was sentenced under the habitual criminal statute (G.S.1949, 21-107a) to a term of sixty years in the state penitentiary. Defendant filed notice of appeal and requested this court to appoint counsel, which request was denied. He then presented his brief pro se on appeal. The judgment and sentence of the trial court were affirmed in State v. Stubbs, 186 Kan. 266, 349 P.2d 936, cert. den. 363 U.S. 852, 80 S.Ct. 1632, 4 L.Ed.2d 1734. A detailed statement of facts is set forth in the opinion. In November 1964 present counsel was appointed, and upon defendant's application this court recalled the original mandate and ordered his appeal reinstated. This matter has also been before us in an original proceedings in habeas corpus. (See Stubbs v. Crouse, 192 Kan. 135, 386 P.2d 227.)

Defendant raises several points not advanced in his original appeal. These pertain to the alleged violation of his constitutional rights, and more specifically, to (1) the admissibility of his written statement at the trial, (2) the delay between the time of his arrest and the time he was brought before an examining magistrate, during which period his written statement was obtained, and (3) the lack of notice that he would be sentenced under the habitual criminal act.

It appears from the record defendant surrendered to the police on the morning of Friday, September 5, 1958, at approximately 1:00 a. m., but was not interrogated until 1:15 p. m. He was upset, and at his request was returned to jail. He was questioned no further until approximately 10:00 a. m., Saturday, September 6, when he agreed to give a statement. The statement was given at 11:45 a. m., transcribed, and signed about 4:30 p. m. Thereafter, the defendant was detained until he was taken before an examining magistrate on Monday, September 8, on which date counsel was appointed to represent him.

Defendant first contends his statement constituted illegal testimony and was inadmissible because he was not furnished counsel after he had requested it prior to making the statement and thus was denied due process of law and assistance of counsel in violation of the sixth amendment of the United States Constitution. The basic question involved on this point is whether or not while under arrest an accused's statement made during a pretrial interrogation by law enforcement authorities is rendered involuntary and inadmissible because of the absence of counsel at the time it is made.

Defendant relies primarily upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, to support his contention. In the Massiah case the defendant was indicted, arrested and freed on bond after employing an attorney. Federal agents, with the assistance of the defendant's confederate, installed a radio transmitter in the confederate's automobile and overheard the defendant's unguarded admissions, which were later used against him at trial. These admissions were made in the absence of retained counsel. The court held the admissions were inadmissible. The facts of the case are not analogous to those of the instant case.

In the Escobedo case a suspect in a murder case made certain incriminating statements after he had requested and had been denied an opportunity to consult with his retained counsel and without being warned of his right to remain silent. Mr. Justice Goldberg, speaking for a majority of the court, said:

'The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner's request to consult with his lawyer during the course of an interrogation constitutes a denial of 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' * * * and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation.

* * *

* * *

'* * * We hold only that when the process shifts from investigatory to accusatory--when its focus is on the accused and its purpose is to elicit a confession--our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.' [Our emphasis.]

The facts presented in the Escobedo case are in sharp contrast to those of the instant case. Escobedo was a twenty-two-year-old boy of Mexican extraction with no previous police record, while Stubbs was a forty-four-year-old man with several prior criminal convictions, and who was no stranger to the 'Halls of Justice.' Escobedo had employed a lawyer and repeatedly requested the opportunity to consult with him; his request was denied, although his lawyer was in an outer room seeking permission to speak to his client. There is no evidence that Stubbs was denied counsel or was refused a request to see or call his attorney. No one advised or inquired whether or not Escobedo understood his constitutional rights, while in the instant case the county attorney inquired whether or not Stubbs fully understood his constitutional rights and received an affirmative reply prior to Stubbs' giving the statement. In Escobedo the '[p]etitioner had become the accused, and the purpose of the interrogation was to 'get him' to confess his guilt despite his constitutional right not to do so,' while Stubbs was only one of two suspects under investigation at the time he made his statement.

The defendant would ask this court to declare that an accused has a constitutional right to have counsel provided at the investigative stage of the proceedings when a written statement is given by him to the police in order for the statement to be admissible. Neither Escobedo nor any other decision called to our attention has held that statements or admissions to police officers are inadmissible solely because they are made at a time when the accused did not have counsel. (Latham v. Crouse, 320 F.2d 120 (10th Cir.1963), cert. den. 375 U.S. 959, 84 S.Ct. 449, 11 L.Ed.2d 317; Otney v. United States, 340 F.2d 696 (10th Cir. 1965.)

In Powers v. State, 194 Kan. 820, 402 P.2d 328, a written confession was made by the accused prior to arraignment and before he was represented by counsel. The accused was advised of his right to consult with an attorney prior to the taking of the statement, but he made no request for counsel. In holding that the accused's rights were not violated by the absence of counsel, this court said:

'* * * the Federal Supreme Court has never said one accused of crime is an incompetent person and entitled to counsel as such at every stage in a criminal proceeding.

'No case is cited which states or suggests that counsel must be provided at the investigation stage, or preliminary hearing stage, of a criminal case in Kansas, where the defendant has not requested counsel, has been informed of his rights to counsel, and makes an intelligent waiver, as the appellant did in the case presently before the court. (P. 824, 402 P.2d p. 331.)

Stubbs contends he had requested and had been denied the opportunity to consult with an attorney prior to the giving of his statement. This contention is based on an isolated portion of his direct examination where he testified: 'Mr. Phillips asked me if I had money for an attorney. He asked me if I could get an attorney. I said, 'No, I would like to have one.' There was nothing else said about an attorney until after they had got their confession. Then I had appointed attorneys.'

The following testimony was elicited on cross-examination of the defendant by the county attorney:

'Q. Is it not true before you signed this you read that statement?

'A. Did I have any choice? I never had no counsel.'

In our opinion a fair reading of the defendant's uncorroborated testimony can hardly be construed as a...